Interview with Antonio Cassese, former president of the United Nations Commission of Inquiry on Darfur

Law professor at the University of Florence in Italy and the first president of the International Criminal Tribunal for the Former Yugoslavia, Antonio Cassese presided over the United Nation's Commission of Inquiry on Darfur. The Commission's January 25, 2005 report led to the referral of the case to the International Criminal Court (ICC). In this interview, Cassese reacts to ICC prosecutor Luis Moreno Ocampo's February 27 announcement of the initial results from his Darfur investigation. The prosecutor is asking the pre-trial chamber to subpoena Ahmad Muhammad Harun, formerly in charge of Darfur at the Sudanese Ministry of the Interior, and Ali Muhammed Ali Abd-al-Rahman alias "Ali Kushayb", former head of the janjaweed Arab militia. Do these names surprise you?

They were individuals that we were quite familiar with, that we'd even included on our list of 51 people who in our opinion should be criminally investigated and prosecuted. So I am not surprised at all. I was more surprised by the fact that the prosecutor started with mid-level individuals. Harun was only assistant Secretary of State. At the time we met him, we had a very long interview with him, of course. Since then, he became secretary of state for humanitarian affaires... it's ridiculous, because we've already gathered quite a bit of evidence indicating that he was one of the architects of the massacres committed by the janjaweed.�

Is he one of the brains?

No, the brains are higher up. He was a very good civil servant who really knew how to organize things. He had taken orders, he had organized the janjaweed well, and thus the relations between the authorities in Khartoum and the Arab militia. He was involved in organizing these crimes, but he was not a high up leader. He was not part of the small group of 12 people that we have pointed out and who in our opinion had planned and ordered the crimes. The other suspect, Ali Kushayb, his name was also on our list. But there as well we are not talking about a major player. He is currently an assistance of police. Like many of the militiamen, he was incorporated into the Sudanese police. These are minor players.�

What's the explanation for these choices?

I believe that Moreno Ocampo has decided to adopt the small step strategy, a very gradual strategy, not to go directly looking for the major players who did the planning but to start at the bottom. And maybe he plans on going up the chain of command little by little... I was also struck by the fact that he did not ask for arrest warrants but subpoenas. The president of Sudan has said several times that he will never allow a Sudanese citizen to be brought before the ICC, so he has already refused to cooperate. Better to ask for arrest warrants, since they will never be carried out, so as to go directly before the United Nations Security Council. That would have dramatized the situation. Fortunately this was brought before the chamber presided over by Judge Claude Jorda because I think he will realize that this doesn't make sense and he'll issue the arrest warrants.�

Is the prosecutor trying to avoid antagonizing Sudan so that it doesn't interfere with United Nations and African Union efforts to field a peace keeping force in Darfur?

I don't know about all that, but I am sure that Moreno Ocampo is very independent. No, I am sure that is part of his strategy, the small step strategy. He has taken his time, 20 months in fact, to gather the evidence... The other thing I don't understand is why he didn't ask Sudan to authorize him to go to Darfur from the beginning. He said that the point was to ensure the protection of victims and witnesses. Of course, that's a fundamental requirement. But one can ask the authorities in Khartoum to allow ICC investigators to go to Darfur and ensure that no one touches the victims or witnesses. For our commission, from the start I insisted on going to Darfur. They said okay, we will cooperate. Since then, the people we have met remain under our protection.�

Isn't the situation very different for the ICC?

Of course. Our report made a very harsh finding: no genocide but crimes against humanity. And, of course, Khartoum's position has stiffened... But I have never seen a document of the prosecutor formally asking for cooperation. If there had been a refusal, it could have been referred to New York. And then he also said, "I'm not planning on going to Darfur because it is dangerous for my people." In an official document I replied that he could have asked the authorities to ensure security and send the military to protect the prosecutor and his investigators, at least in the three major cities of Darfur, like we did [IJT-55]. But he prefers to adopt this very different strategy - which I respect because he has good reasons - not to be confrontation from the outset and to hope for cooperation from Khartoum.�

Despite it all, has he gathered enough �
evidence?

I read the 100 page document that the prosecutor made public, and I want to underline that he did excellent work. It's a very detailed document, and I am on the same wave length regarding the content of the charges. Yes, as far as the two people whom he is requesting be accused, he did excellent work.�

What could the impact be?

I don't know. Since it's a small step, the impact is small too. If it had been a big step, for example, accusing individuals at a very high level, then the impact would have been much stronger. If Judge Jorda issues arrest warrants like I hope, they won't be carried out by Khartoum, and then the prosecutor will have to go to New York. This takes a fair amount of time... one month, two months. But you know, as far as international criminal justice is concerned, the Security Council is a paper tiger. We saw it with Mladic and Karadzic in the former Yugoslavia. Belgrade did not carry out the decisions of the Security Council. Moscow is behind Belgrade and Beijing is behind Sudan. No, I don't see a significant legal impact.�

How about politically?

These are neither bigwigs nor small fries, but mid-level individuals, who do not have a large impact on international opinion. It's not by accident that Khartoum withdrew Harun from power somewhat by putting him in Humanitarian Affairs. But he is someone who will not be brought before the ICC. Yesterday I looked at the list of current ministers - I saw that the Ministers of Defense and Foreign affairs are no longer in their positions. They are among the twelve special advisors to the president. That's very interesting, because that came following our report. Because if our report was read well, it was clear who was implicated. The 51 names were not given, but it indicated that twelve key individuals were part of the government. And I imagine that an intelligent person could draw conclusions by reading between the lines. We aimed very high. The accusations

Ahmad Muhammad Harun and Ali Muhammad Ali Abd-al Rahman, alias Ali Kushayb, are accused of crimes against humanity and war crimes committed in Darfur in 2003 and 2004. According to the prosecutor, Harun, the chief of security for Darfur at the Ministry of the Interior, coordinated the recruitment of janjaweed militia and arranged their financing and arming. Nicknamed the "colonel of colonels", Ali Kushayb is accused of having been at the head of thousands of militia in western Darfur and of having participated in several attacks on civilians. During his February 27 press conference, Luis Moreno Ocampo indicated that Kushayb had been arrested on November 28, 2006, at the request of a Sudanese tribunal.